One Way to Read United States v. Rahimi

The justices stole a march on the scholars, getting there first in publishing a seven-chapter volume called What New York State Rifle & Pistol Association v. Bruen Should Have Said.

Comments

[Kazinski]

I don’t know about that, Gorsuch goes out of his way saying they are not scaling back on the “text as informed by history and tradition test”.

“But if reasonable minds can disagree whether §922(g)(8) is analogous to past practices originally understood to fall outside the Second Amendment’s scope, we at least agree that is the only
proper question a court may ask. Post, at 5. Discerning
what the original meaning of the Constitution requires in
this or that case may sometimes be difficult. Asking that
question, however, at least keeps judges in their proper
lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs. And whatever indeterminacy may be associated with seeking to honor the Constitution’s original meaning in modern disputes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court
with arguments from text and history, and we are bound to
reason through them as best we can. (As we have today.)
Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule. (Except the judges themselves.) Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.”

[Malika the Maiz]

How many Justices joined Gorsuch's concurrence?

[Kazinski]

Might as well ask how many dissented?

But if Gorsuch’s opinion isn’t good enough for you here is Roberts majority syllabus explaining how the statute met the Bruen test, and not a word about changing the test:

“Together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.
Section 922(g)(8) is not identical to these founding-era regimes, but it
does not need to be. Like the surety and going armed laws, Section
922(g)(8)(C)(i) applies to individuals found by a court to threaten the
physical safety of another. This prohibition is “relevantly similar” to
those founding era regimes in both why and how it burdens the Second
Amendment right. Id., at 29. Section 922(g)(8) restricts gun use to
check demonstrated threats of physical violence, just as the surety and
going armed laws do. Unlike the regulation struck down in Bruen,
Section 922(g)(8) does not broadly restrict arms use by the public generally.
The burden that Section 922(g)(8) imposes on the right to bear arms
also fits within the Nation’s regulatory tradition. While the Court does
not suggest that the Second Amendment prohibits the enactment of
laws banning the possession of guns by categories of persons thought
by a legislature to present a special danger of misuse, see Heller, 554
U. S., at 626, Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another, §922(g)(8)(C)(i), which notably matches the similar judicial determinations required in the surety and going armed laws. Moreover, like surety bonds of limited duration, Section 922(g)(8) only prohibits firearm possession so long as the defendant “is” subject to a restraining order. Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition. The going armed laws provided for imprisonment, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.”

And from the main opinion:
“For example, if laws at the
founding regulated firearm use to address particular problems, 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 regulates arms-bearing for a permissible reason, though, it
may not be compatible with the right if it does so to an extent beyond what was done at the founding. And when a
challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass
constitutional muster.””

Its all Bruen right down the line.

[Malika the Maiz]

One Justice dissented, Thomas, the author of Bruen. Here's what he had to say about the fidelity of the Rahimi majority to Bruen:

As Bruen explained, “determining whether a historical regulation is a
proper analogue for a distinctly modern firearm regulation
requires a determination of whether the two regulations”—
the historical and modern regulations—“are ‘relevantly
similar.’” 597 U. S., at 28–29. In doing so, a court must
consider whether that single historical regulation
“impose[s] a comparable burden on the right of armed selfdefense and whether that burden is comparably justified.”
Id., at 29 (emphasis added).
The *Court’s contrary approach* of mixing and matching
historical laws—relying on one law’s burden and another
law’s justification—defeats the purpose of a historical inquiry altogether

*emphasis mine*

[Brett Bellmore]

It's all pretending to be Bruen, right down the line. But the Court has now signaled that they'll abandon Bruen any time they find themselves uncomfortable with the result.

[Scribe]

How about: "Sheldon Whitehouse doesn't even have to growl any more, let alone threaten the Court, for John Roberts to buckle and bow down, and give Whitehouse what he wants."

In this case, gun control and Clarence Thomas alone on an island.

For the umpteenth time in the last dozen years, Roberts had proven he's not fit to head an independent branch of government. He won't stand up for the Court's independence and lets elected politicians dictate his decisions.

[Noscitur a sociis]

What could he have done to convince you that he had reached the decision independently?

[ReaderY]

So basically, whenever judges disagree with you, they must be corrupt or cowards. If they weren’t corrupt and thought independently, they’d obviously see things your way.

This was an 8-1 decision that didn’t go your way. Eight. Eight Justices didn’t go your way. Why are you picking on Roberts especially?

[Stephen Lathrop]

Scribe — Roberts has made it his special mission to assure the Court cherishes above all else the preservation of Republican Party political dominance—as presented in Court cases which have power directly to affect election outcomes. Roberts has always understood that to get away with a nearly unbroken skein of Republican-favoring political decisions, he must sail under cover of some appearance of impartiality elsewhere. Hence his more-diverse record on culture war issues.

Thus, Roberts has been wiser than some of his right-wing critics understand. In cases like yours, such critics do injustice to one of the most effective champions of their cause. I am no fan of Roberts, but I can see what he is doing, and afford him a grudging respect for how well he does it. No justice during my lifetime has been as effective as Roberts at promoting corporate Republican-style dominance of American law, culture, politics, and economic outcomes. I can't even think of another who comes close.

[JoeFromtheBronx]

Maybe, the justices are fans of those Prof. Balkin "what x should have said" books.

[Hugh]

It turns out there is one group that hates the Heller decision as much as the “no individual rights under the 2nd amendment” crowd. The 2nd amendment absolutist gun fetishists, including some of the contributors to this blog and associated commenters, hate Scalia’s decision for its qualifiers. And now the victory provided by Justice Thomas in Bruen has proven to be transitory, as the eight other justices not suitably ruthless and without moral compass have realized the enormity of the Bruen error. The 2nd amendment fanatics thus hate the Heller decision as much or more than their opponents.

[loki13]

I think that the following two things are inarguable-

1. The Second Amendment is much more protective of individual rights than it was. Whether that's good or bad is a normative question that people can get lathered up about, but it is.

2. Bruen, and Thomas's decision, was easily known at the time to be unworkable, and has been by the lower courts. Walking it back to provide some basic framework was inevitable.

[Stephen Lathrop]

Loki — In Bruen Thomas stupidly supposed that both historical facts, and accepted historical methods, vindicated his own present-minded historical misunderstandings—the opposite of truth in both instances. Thomas went on to declare that to warrant recognition by the Court, any challenge must posit exclusively his own made-up facts, and rely exclusively on his own made-up historical methods.

Then, Thomas decreed that reliance on any better historical facts, or more-competent historical reasoning, disqualified any challenge. Case analysis which did not confine its scope within the bounds of his own egregious errors was contrary to law.

It is a pity that to fully appreciate the logical monstrosity of Thomas’ benchmark achievement requires professional training in academic methods of historical research and analysis. But apparently even the legal community has caught on quickly that Bruen is useless as a practical guide to deciding cases.

Bruen may not be the worst Supreme Court decision in history. Other legal abominations exceed Bruen in barbarity of their subject matter, and the extent of injustice wrought by their conclusions. But with Bruen Thomas established a standard for gibberish in legal reasoning which may never be excelled. It will be interesting to see whether over time attempts to better understand Bruen will instead tarnish even the precursor cases it sought to extend. To the extent those earlier cases laid down equivocal precursors for Bruen’s later reliance, that might logically be expected.

Also, Thomas did it all with an eye to achieve a corrupt purpose: to armor-plate a preferred politically partisan policy outcome—an objective he could not have accomplished in any more-legitimate way. For that Thomas will enjoy lasting and uncritical praise from the partisans he meant to serve.

A remarkable case from a remarkable justice—the most corrupt justice in the history of the Court.

[Noscitur a sociis]

Thomas established a standard for gibberish in legal reasoning which may never be excelled.

Don’t sell yourself short, Stephen Lathrop!

[Stephen Lathrop]

Noscitur, I only purport to help out a bit with questions touching on history, and methods of historical research. I do not purport to comment on modern legal interpretations uncomplicated by questions of historical inference.

On those questions I defer to legal experts. I get that it can be hard for someone untrained in historical methods to distinguish between historically inflected commentary on legal subjects, and legally inflected commentary on historical subjects.

For reasons I confess I do not understand, people trained in history seem to do far better with that distinction than people trained in law. You will find it almost impossible to bait a first-class historian into a discussion on any question pertaining to modern law. Lawyers of every class, from top to bottom, rush to comment on historical subjects about which they know nothing at all. The lawyers seem not even to notice that such a distinction exists. That insouciance may even apply to you.

[The Margrave of Azilia]

OK, I won’t go into entrail-reading of the justices’ opinions, since I haven’t read them.

Let me suggest a way to look at the 2nd Amendment.

There’s a preambular clause about the militia and an operative clause protecting the right to keep and bear arms. Can those clauses be read together, and if so, would that mean gun rights are restricted?

By no means!

The natural reading of the operative clause is…that the people have the right to keep and bear arms. Does the “well regulated militia” preamble take away from this?

That reading of the preamble which gives force to the literal terms of the operative clause ought to be preferred. Only if an individual-rights approach can’t go together with the militia preamble would we ditch the preference for individual rights.

OK, the well-regulated militia is supposed to be in readiness to either serve the states, or to serve the feds in enforcing fedderal laws, suppressing insurrections, and repelling invasions. We don’t have to rummage through musty archives to see this because it’s in the main body of the Constitution.

The possible need for the people to be called on for these purposes doesn’t conflict with the right to keep and bear arms. On the contrary! The more the average civilian is experienced in using arms – for self-defense, for hunting, for shooting sports, you name it – the better able he will be to be a good fighter if using the militia turns out to be necessary.

As for non-militia members, a broad culture of gun ownership would spill over to militia members and encourage them to get experience in arms, so you can’t just restrict arms to militia members.

That’s my two cents.

(PS - in case this comes up, I didn't say the militia should have their private arms when serving. The government might supply the arms, but the learning curve would still be less steep if the militiaman knew something about guns.)

[Stephen Lathrop]

Margrave, that has nothing to do with what happened in the past, except insofar as it refers to Heller. Heller is the past source which made up the reasoning you relied upon and recited.

What actually happened was that the founders confronted an issue upon which state-by-state interpretations and preferences differed in part, and agreed in part. The agreed-upon part was the militia purpose. Everything else was a matter of dissent among the states, and bitter controversy which would threaten ratification if any single interpretation were selected to apply uniformly everywhere.

So the practical founders, with ratification uppermost in mind, kept the militia purpose, and left all the other arms-related issues to be resolved variously by the states according to their own laws, constitutions, and preferences.

Unfortunately, to understand that with confidence does require a bit of rummaging, “through musty archives.” But only a bit. It is a much simpler historical case to make than some of the other stuff about the 2A and history which has been misinterpreted in Rahimi.

[The Margrave of Azilia]

So for once you’re invoking originalism against me?

No, I didn’t “rel[y] upon” Heller, in fact that decision was a target of my rummaging quote.

Since I didn’t rely on Heller, your “rebuttal,” based as it is on a false premise, doesn’t work.

We may assume that the pre-1868 Constitution didn’t restrict the *states* as far as Second Amendment rights were concerned. I didn’t actually dispute that.

But since 1868, I’d say the right to keep and bear arms is a privilege or immunity of U. S. citizenship.